When the State Discriminates

Author Carlos A. Ball chronicles the stories of LGBT parents who have fundamentally changed how American law defines and regulates parenthood in this excerpt from The Right to Be Parents: LGBT Families and the Transformation of Parenthood.

BY Carlos A. Ball

September 27 2012 4:00 AM ET

Curtis Watson and his partner, Scott Elsass

The disconnect between Florida’s contention, made while defending the gay adoption ban, that its only interest was in promoting the well-being of children and what was happening in the real world outside of the courtroom became apparent for everyone to see in the months following the federal judge’s ruling. In 2002, the state’s Department of Children and Family’s came under national scrutiny and criticism after it conceded that it did not know the whereabouts of a five-year-old girl who had been missing from her foster-care home for fifteen months. (The child’s foster mother was eventually charged with murdering her.) Rather than an isolated incident, DCF admitted a few months later that seven children had died while missing from their foster-care homes in the previous three years.

In order to try to address this disturbing pattern of neglect, Governor Jeb Bush a few weeks later ordered DCF child protection workers to visit all of the children who were then under the state’s care. Two months after the governor issued his order, DCF had failed to contact more than 1,800 children. Incredibly, a year later, the state conceded that there were still 500 foster-care children whose whereabouts were unknown.

Losing track of those whom it was supposed to be protecting was not the only way in which DCF failed to keep children from being harmed. A disturbing number of children under DCF’s care were also found to be victims of abuse inflicted by adults. In fact, two studies released in 2002 found that the number of children in foster care in Florida who were subjected to physical or sexual abuse increased significantly in the previous two years. Another survey found that the number of children suffering repeated incidents of abuse increased from 7.3% to 9.7% between the first and second halves of 2002.

It is striking to compare this pattern of neglect and abuse of children entrusted to the care of the state of Florida with the quality of care and nurture provided by gay foster parents like Steven Lofton. As part of the litigation papers filed in his lawsuit, Steven explained how, for almost 10 years, he had done his best to take care of his son Bert and to meet all of his needs:

I have been his parent in every way. For example, every day, I wake him up in the morning and help him get dressed and ready to go to school; I help him with his homework when he comes home from school; we have a family dinner together every night, cooked by Roger; and we spend our evenings engaged in a variety of family activities. I take care of Bert when he is sick. I make sure all his vaccinations are up to date. I am a parent volunteer in Bert’s class once a week and an active P.T.S.A. member. I try to expand his horizons by taking him on trips. I encourage him to pursue the positive, healthy activities that he enjoys, such as swim team and drama. I provide a child-friendly home. I include Bert’s friends in our family, inviting them over for dinner and having them join us on family outings to the beach or park. Roger and I teach Bert household responsibilities such as yard work, car maintenance and cooking. I discipline him appropriately when he misbehaves. I hug and comfort him when he is upset. I teach him manners, respect and other values that I consider important. I make sure he is safe. He calls me “Dad.”

Steven and his partner Roger were by no means the only gay people in Florida providing loving and caring home environments for foster children. There are many other stories of gay foster parenting successes in Florida, including that of Curtis Watson and his partner Scott Elsass. In 2003, a DCF case worker was desperately trying to find a home for a young girl whose behavior, according to a newspaper account, was “so violent and temperamental that she had been in 17 different foster homes in two months.” Through the years, Watson and Elsass had taken in more than two dozen foster children into their home, so when the state asked, they agreed to care for this troubled girl as well. The gay couple soon provided the child, for the first time in her life, with the necessary combination of love and discipline that led her not only to stop acting in self-destructive ways, but also to begin to thrive. The transformation in the girl’s behavior was so remarkable that a trial judge issued an order awarding the two men long-term custody of the girl while adding that the state owed them “a debt of gratitude” for the way in which they had cared for the child.

There is also the story of Wayne Larue Smith and his partner Dan Skahen, a gay couple that joined Steven as plaintiffs in the federal lawsuit challenging the gay adoption ban. Wayne and Dan took care of twenty-three foster children between 1999 and 2005. One of them was Charlie, a 3-year-old whose caseworker categorized him as “retarded” because he rarely emitted a sound. But it took only a few weeks of living in the men’s home for Charlie to begin speaking in complete sentences. As a magazine article later put it, “Charlie wasn’t retarded. He had simply withdrawn from a world that until then hadn’t given him much reason to be engaged with it.”

It is deeply disturbing that, in the end, neither DCF’s inability to protect hundreds of children from actual harm inflicted by poorly trained and supervised (heterosexual) foster care parents, nor the proven ability of many gay Floridians to do remarkably well raising children entrusted into their care by the state, made a difference to the federal courts. In 2004, the U.S. Court of Appeals for the Eleventh Circuit issued a ruling upholding the constitutionality of the gay adoption ban. The court reasoned that since most children grow up to be straight, it was reasonable to believe that heterosexual parents are better able “than homosexual individuals to provide adopted children with education and guidance relative to their sexual development.” A judge who later dissented from a decision not to rehear the case, dismissed the court’s reasoning as ludicrous. “There is... no evidence,” she complained, “that the ability to share one’s adolescent dating experiences (or lack thereof) is an important, much less essential, facet of parenting.... It is downright silly to argue that parents must have experienced everything that a child will experience in order to guide them.”

The court also, in discounting the constitutional relevance of the years that many of Florida’s foster care children had to endure before being adopted, contended that it was reasonable for the state to keep children in foster care longer in order to eventually place them in the types of home that it believed were optimal for them. Finally, the court accepted the state’s claim that children were better off raised by a married mother and father by noting that no family arrangement “has proven as enduring as the marital family structure, nor has the accumulated wisdom of several millennia of human experience discovered a superior model.” The court added that “against this ‘sum of experience,’ it is rational for Florida to conclude that it is in the best interests of adoptive children, many of whom come from troubled and unstable backgrounds, to be placed in a home anchored by both a father and a mother.”

The state never found another adoptive family for Bert. Before the end of the litigation, DCF granted Steven and Roger permission to move to Oregon with their three foster children. A few months after moving to Portland, social workers there, having heard about the gay couple as a result of the publicity engendered by the lawsuit, asked them to take into their home two brothers (Wayne, aged 5 and Ernie, aged 2) who were HIV-positive and who had been through a long history of severe abuse and neglect. Less than a year later, Steven and Roger adopted the two boys with the full support of Oregon child welfare officials.